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Clement v Minister For Finance & Deregulation [2009] FMCA 43 (30 January 2009)

Last Updated: 4 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLEMENT v MINISTER FOR FINANCE & DEREGULATION

ADMINISTRATIVE LAW – Act of grace payment – judicial review – merits review – moral obligation or responsibility – summary disposal.


Criminal Justice Act 1988 (UK), s.133

The Parliament of the Commonwealth of Australia, Houses of Representatives, Financial Management and Accountability Bill 1996 – Explanatory Memorandum, 1996

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Applicant WAFV/2002 v Refugee Review Tribunal [2003] FCA 16
Association of British Civilian Internees Far East Region v Secretary of State for Defence [2002] EWHC 2119
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537
Clement v Comcare [2007] FCA 2039
Clement v Comcare [2008] FCA 1779
Clement v Comcare [2008] FCA 1780
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Dent v Australian Electoral Commissioner [2008] FCAFC 111; (2008) 249 ALR 523
Enfield Council v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 246 ALR 465
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1
Marbury v Madison (1803) 5 US 87
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; (1976) 136 CLR 1
NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730; (2003) 199 ALR 412
Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997
Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
R v Anderson; ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177
R v Criminal Injuries Compensation Board; Ex parte A [1999] UKHL 21; [1999] 2 AC 330
R v Instan [1893] 1 QB 450
R v IRC; Ex parte Preston [1984] UKHL 5; [1985] AC 835
R v Ministry of Defence; Ex parte Walker [2000] UKHL 22; (2000) 2 All ER 917
R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213
R (on application of Mullen) v Secretary of State For the Home Department [2002] EWHC 230; (2002) 3 All ER 293
SBAP v Refugee Review Tribunal [2002] FCA 590
SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014
Sharp v Wakefield [1891] AC 173
Thorpe v Commonwealth (No 3) [1997] HCA 21; (1997) 144 ALR 677
Toomer v Slipper [2001] FCA 981
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54
White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298

M. Aronson, B. Dyer, M. Groves, Judicial Review of Administrative Action, (Third Edition) (Sydney: Lawbook Co., 2004)
P. Cane, L. McDonald, Principles of Administrative Law: Legal Regulation of Governance, (Melbourne: Oxford University Press, 2008)
M. Groves, H.P. Lee, (eds.) Australian Administrative Law: Fundamentals, Principles and Doctrines, (Cambridge: Cambridge University Press, 2007)

Aristotle, Nicomachean Ethics
J.Annas, The Morality of Happiness, (New York: Oxford University Press, 1993)
J. Casey, Pagan Virtue: An Essay in Ethics, (Oxford: Clarendon Press, 1990)
Cicero, De Officiis (On Duties
P. Coss (ed.), The Moral World of Law, (Cambridge: Cambridge University Press, 2000 [reprint 2007])
S. Fleischacker, A Short History of Distributive Justice, (Cambridge, MA: Harvard University Press, 2004)
R. George (ed.), Natural Law Theory: Contemporary Essays, (Oxford: Clarendon Press, 1992 [reprint 1994])
Lewis and Short, A Latin Dictionary, (Oxford: Clarendon Press, 1879 [reprint 1987])
F. D. Miller Jr., Nature, Justice, and Rights in Aristotle’s Politics, (Oxford: Clarendon Press, 1995 [reprint 2004])
M. Nussbaum, The fragility of goodness: Luck and ethics in Greek tragedy and philosophy, (Cambridge: Cambridge University Press, 1986)
J. Rist, Real Ethics: Rethinking the Foundations of Morality, (Cambridge: Cambridge University Press, 2002)
T. Williams, Who is my neighbour? Personalism and the Foundations of Human Rights, (Washington DC: The Catholic University of America Press, 2005)

Applicant:
KRISTINE THERESE CLEMENT

Respondent:
THE HONOURABLE LINDSAY TANNER, MINISTER FOR FINANCE & DEREGULATION

File Number:
CAG 20 of 2008

Judgment of:
Neville FM

Hearing date:
4 September 2008

Date of Last Submission:
18 September 2008

Delivered at:
Canberra

Delivered on:
30 January 2009

REPRESENTATION

Counsel for the Applicant:
Ms Clement in person

Counsel for the Respondent:
Mr McCarthy

Solicitors for the Respondent:
Blake Dawson

ORDERS

(1) The Application filed on 5th May 2008 be dismissed with costs.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 20 of 2008

KRISTINE THERESE CLEMENT

Applicant


And


THE HONOURABLE LINDSAY TANNER
MINISTER FOR FINANCE & DEREGULATION

Respondent


REASONS FOR JUDGMENT

Introduction

  1. The Applicant, Ms Clement, can rightly be described as an experienced litigator. She clearly has had, and continues to have, numerous proceedings before various tribunals and courts. Not inaccurately, she may also properly have earned the description of “dogged” in her pursuit of matters that date back to and arise out of her employment with the Australian Bureau of Statistics (“ABS”) in the late 1980s and early 1990s, which is the factual genesis for these proceedings.
  2. Those proceedings and that history are exhaustively documented in Dr Verney’s affidavit, affirmed on 27th June 2008, and its three volumes of annexures totalling more than 1000 pages, filed in the current proceedings. Dr Verney filed a supplementary affidavit, affirmed on 14th August 2008, to complete the documentary chronicle.[1] Dr Verney is the Branch Manager of the Special Claims and Land Policy Branch, within the Asset Management Group of the Department of Finance and Deregulation.
  3. Ms Clement is assisted in her various litigious pursuits – including the current proceedings - by her husband, Mr Howard-Smith. He advised the Court that he was legally trained but no longer held a practising certificate. In what area(s) of law he practised, for what period(s) of time, and when he last formally practised, were not canvassed. In the proceedings before me I permitted him to remain at the Bar table to support his wife. From time to time, with leave of the Court and with the ready agreement of Counsel for the Respondent, Mr McCarthy, I allowed him to speak on a particular point from time to time. He advised the Court that he was “an expert in justice.”
  4. It should be recorded at the outset that, from my perspective during the conduct of the hearing and matters preparatory thereto, those acting for the Respondent, and especially his Counsel, were exemplary in their dealings with and conduct towards the Applicant and her husband. They more than upheld the responsibilities expected of model litigants. Indeed, throughout the hearing itself, the conduct of Mr McCarthy and those instructing him towards Ms Clement and her husband (both of whom, it may be said, I hope not uncharitably, are quite senior in age to those who were opposing them) struck me as being genuinely gracious and generous – somewhat uncommon virtues, generally speaking, in litigation.
  5. I venture one further general observation: in reading the significant material put before the Court, it may be said rather confidently that every word written thus far in earlier litigation of one kind or another has consistently been used in later proceedings (using the term very generally) by Ms Clement in her relentless pursuit of what she perceives to be her utterly genuine claim(s) for redress that arise (she says) out of her time of employment with the ABS. It is more probable than not that these proceedings, and every word of this judgment, will suffer the same fate. It too will more likely than not become part of the ongoing history of litigation that fills the life of the Applicant and her husband. In that respect, this Court may well become but something of a judicial speed-bump on the road to further appeal. I do not intend such a comment to be either a self-fulfilling prophecy or an incitement to proceed as indicated.

I. The Applications

  1. By letter dated 12th February 2008, the Honourable Lindsay Tanner, the Minister for Finance and Deregulation (“the Minister”), informed Ms Clement of his decision not to make an `act of grace’ payment to her under s.33 of the Financial Management and Accountability Act 1997 (Cth) (“the Act”). That section states:
  2. Ms Clement had originally applied for such a payment by letter dated 3rd December 2000. In that letter she sought an act of grace payment for a sum of $1,518,552. On 5th February 2001, the then Parliamentary Secretary to the Minister for Finance and Administration, Mr Slipper MP, advised Ms Clement that her application for such a payment had been declined. Mr Slipper’s decision was challenged in this Court in 2004 but the proceedings were ultimately discontinued in March 2005.
  3. I should also note that following further representations to the Minister at the time, Mr Slipper agreed to the establishment of an independent inquiry into Ms Clement’s various claims. In March 2004, the Department of Finance and Administration engaged Mr Peter Grills to conduct that inquiry, which included meeting with Ms Clement and receiving from her a typically detailed written submission. On 12th May 2004 Mr Grills provided his report with its recommendation that the Minister’s decision not to make an act of grace payment should be affirmed. It was subsequent to that report and recommendation that Mr Slipper confirmed his earlier decision not to make such a payment to Ms Clement and which gave rise to the initial legal challenge in this Court – ultimately discontinued – that is referred to in the previous paragraph. Mr Grills’ report is part of the annexure to Dr Verney’s affidavit (tab 35 of GSV 38).
  4. Between 2005 and 2007, a number of different Ministers had the carriage of and the responsibility for Ms Clement’s matter – if I may describe it so. As recently as 18th December 2007, in response to an invitation from Senator Colbeck’s solicitors (the Senator had become the Parliamentary Secretary to the Minister for Finance and Administration in January 2006), Ms Clement provided further written comments in relation to Senator Colbeck’s reconsideration of an act of grace payment.[2]
  5. The final evidentiary matter to note here is that prior to making his decision, Minister Tanner was provided with a detailed brief of materials in relation to his consideration of making an act of grace payment to Ms Clement. That brief is also part of the annexure to Dr Verney’s affidavit (GSV 38). Part of Ms Clement’s grounds of complaint is that she was not afforded an opportunity to comment on the brief provided to the Minister.
  6. For the sake of expediency, apart from anything else, I can dispose of that protest immediately simply by noting that the brief comprised the materials that had been provided to previous Ministers and Parliamentary Secretaries, and to Mr Grills. This is also to say that Ms Clement had seen and had commented on all of the materials that comprised the brief to the Minister.[3] There is no basis for this complaint by the Applicant.
  7. A copy of Minister Tanner’s letter of 12th January 2008, rejecting her request for an `act of grace payment,’ is annexed to Ms Clement’s Application for an Order of Review, filed on 5th May 2008. In it he stated:
  8. A little later in the same letter, Mr Tanner commented:
  9. The Minister then went on to note findings by the Merit Protection Review Agency (“MPRA”) (the Report from that agency is annexed to Dr Verney’s affidavit) and concluded that “I do not consider that the MPRA’s findings support your contentions.” He ended his letter in the following terms:
  10. Pursuant to a formal request from Ms Clement,[4] the Minister provided a Statement of Reasons to the Applicant, dated 4th April 2008. A copy of the Statement of Reasons is annexure “GSV 44” to Dr Verney’s affidavit of 27th June 2008.
  11. By an Application filed on 5th May 2008, Ms Clement sought review, under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), of the current Minister’s more recent decision (that is to say, a decision of the same kind but subsequent to that of the former Minister in a different administration, Mr Slipper) to decline an act of grace payment. Counsel conceded that the Minister’s decision was reviewable under the ADJR Act.[5]
  12. By an Application in a Case, filed on 30th June 2008, the Respondent sought to have Ms Clement’s application for review struck out on three grounds:
    1. the Applicant [Ms Clement] has no reasonable prospects of successfully prosecuting the proceeding;
    2. the proceeding is frivolous or vexatious;
    1. the proceeding is an abuse of the process of the Court.
  13. Accordingly, for the purposes of the hearing on 4th September, formally the Minister was the Applicant (in the strike out application) and Ms Clement the Respondent. For the purposes of these reasons, however, for the sake of consistency, and because hers is the primary application before the Court, I will continue to refer to Ms Clement as the Applicant and the Minister as the Respondent.
  14. In addition to oral argument, Ms Clement filed detailed written submissions on 29th August, and post the hearing, on 18th September, the latter essentially in relation to the Respondent’s authorities referred to in the course of the hearing on 4th September 2008.
  15. The Respondent filed comprehensive written submissions on 22nd August. The Respondent had leave to file further written submissions in reply to those (post hearing) of Ms Clement but in the event chose not to do so.
  16. These reasons continue as follows:

(ii) Act of grace payments – A Brief Legislative History [22] – [31]

(iii) Act of grace payments: A comparative view [32] – [38]

(iv) Judicial review: General Principles [39] – [43]

(v) Applicant’s Grounds of Review: General Observations [44] – [51]

(vi) Specific grounds of review [52] – [99]

(vii) Summary Disposal Application [100] – [107]

(viii) Conclusion [108] – [117]

II. Act of Grace Payments: A Brief Legislative History

  1. According to the Explanatory Memorandum provided by the Minister for Finance at the time, the Honourable John Fahey MP, the Financial Management and Accountability Act 1997 (Cth) was introduced into the Commonwealth Parliament as part of a package of legislation comprising three Acts, which was designed to replace the Audit Act 1901 (Cth). According to the Minister, the Financial Management and Accountability Act “is concerned with the regulatory/accounting/ accountability framework for dealing with and managing the money and property of the Commonwealth.”[6] The Minister went on to state:
  2. The Audit Act 1901 was formally repealed by the Audit (Transitional and Miscellaneous) Amendment Act 1997 (Cth), which Act received assent on 24th October 1997.
  3. Section 34A of the Audit Act is the predecessor of s.33 of the Financial Management and Accountability Act, which section is central to these proceedings. Section 34A provided:
  4. One other observation may be made, to which there are a couple of parts. The fundamental premises of s.34A of the now repealed Audit Act, and s.33 of the Financial Management and Accountability Act, are that (a) there are no other remedies available to the Applicant and that, (b) essentially as a matter of moral responsibility or obligation, the Minister chooses to act so as to remedy an injustice that otherwise remains incapable of repair or solution through the ordinary or usual processes of the law.[8] A third aspect or requirement is that such a payment is ultimately a matter that rests or reposes, as a matter of discretion, in the Minister. This is also to say that there is never any formal duty or compulsion on the part of the Minister to authorise a payment under s.33 of the Act even if, as s.33 requires, there exist “special circumstances.” It is submitted here by the Minister that no “special circumstances” exist, in any event, that could warrant a payment under s.33.
  5. Each of these matters was put formally in written and oral submissions by Counsel for the Respondent in the strike out application. For example, in par.17 of his written submissions, Mr McCarthy stated: “A decision to authorise a payment under s.33 of the FMA Act is not made by reference to any legal entitlement, but in response to a moral obligation, as perceived by the decision-maker, and assumed by the Commonwealth as a result of the actions of its employees or instrumentalities.” I have added the emphasis. For reasons elaborated later I do not see that there is any moral obligation or responsibility on the Minister to make such a payment to Ms Clement.
  6. A claim as made by Ms Clement, without establishing a moral obligation or entitlement, cannot succeed.[9] Certainly, according to basic, classical tenets of justice, such an obligation arises in situations where the precepts of justice demand that someone be paid what is due to them. For example, according to Aristotle, justice belongs to those who have rightly ordered law in their relations with each other since law and the administration of justice (as well as good governance) judges what is just and unjust. He states specifically: “Justice implies equity since the just refers to what is equal or fair.”[10] As other commentators note: “The community (or state) does not surrender its goods to individuals as an act of condescension or gratuitous benevolence, it does so because this is due to them; such goods truly belong to all. If this is the case, then the members of the community have rights vis-à-vis the community, and can therefore morally lay claim to what is theirs.”[11] No such claim to an entitlement, as a matter of moral duty based on any principle of justice, in my view, has been established by Ms Clement.
  7. Similar principles are readily found also, for example, in Cicero. In De Officiis (On Duties), he states:
  8. The legislation here in question imposes, as required by the Commonwealth Parliament, a requirement that there be a `moral obligation or responsibility’ made manifest by the person claiming an act of grace payment. As I understand this responsibility, it must be based, as a matter of principle, in the virtue of justice rather than the virtues of charity (or benevolence). As already stated, in my view, no such case, as a matter of justice, has been made out by Ms Clement.
  9. As well, the fundamental notion, inherent in the word “grace”, is benevolence or free act. The original Latin word gratia obviously underscores this essential notion of gratuity of action.[13] However, as already stated, courts have consistently confirmed that the discretion reposed in the Minister cannot and must not be exercised capriciously or on any whim.[14] Similarly, as a matter of principle as well as practicality, charitable considerations cannot apply otherwise all manner of well-intentioned applications would soon flood the Minister’s office.
  10. It seems to me that unless long-accepted principles of justice, rather than charity, are applied to cases such as the present, no discernible lodestar could be found. Applying it to the present application, no moral obligation or responsibility has been established upon which the Minister could reasonably make such a payment under s.33 of the Act. Ms Clement’s (and Mr Howard-Smith’s) obvious moral determination and consistent but unsubstantiated declamations and protests, in my view, are insufficient to establish a moral obligation or responsibility that must be met, or warrants the favourable exercise of discretion, by the Minister with a payment under s.33 of the Act.

III. Act of Grace Payments: A Comparative View

  1. In the United Kingdom, there exists a modest body of case law in relation to ex gratia payments. Pursuant to the decision of the House of Lords in R v IRC; Ex parte Preston[15] and the Court of Appeal in R v North and East Devon Health Authority; Ex parte Coughlan,[16] there has come to be accepted a doctrine of “substantive unfairness.”[17]
  2. It should be stated immediately, however, that such a concept has never found favour with Courts in Australia, as I will shortly show.[18] It is nonetheless instructive to consider momentarily the reasoning and outcome of the ex gratia payment cases in the UK. In none of them did such claims succeed.
  3. In R v Ministry of Defence; Ex parte Walker[19]a sergeant in the British army, who was part of an United Nations peace-keeping force, claimed to be entitled to an ex gratia payment because he was engaged in combat in the service of his country in Bosnia. As a result of injuries sustained following an attack whilst he was in Bosnia, albeit that he was asleep in an accommodation block at the time it was shelled by one of two warring factions, he had one leg amputated. He applied for compensation under a scheme that applied to personnel who were injured by crimes of violence whilst serving overseas. His claim failed under the compensation scheme because it was considered that he was injured from military activity by a warring faction, by virtue of which his injuries did not come under the scheme in question. The House of Lords held that Mr Walker had been given every opportunity to argue his case that he should be included in the scheme, and that he was not caught by the exclusion that applied to those injured in wartime operations. The House of Lords refused his application for an ex gratia payment.
  4. In R (on application of Mullen) v Secretary of State For the Home Department,[20] Mr Mullen, who was an alleged quarter-master of an IRA unit in London, was convicted and sentenced to 30 years imprisonment in relation to conspiracy to cause explosions likely to endanger life or to cause serious injury to property. His appeal, out of time, for the conviction was allowed. Upon his release he applied to the Secretary of State for an ex gratia payment pursuant to s.133 of the Criminal Justice Act 1988 (UK), which provided for compensation where there had been a “miscarriage of justice.” The Secretary refused to pay him. Simon Brown LJ and Scott Baker J refused to find that there was any abuse of power by the Secretary who had given Mr Mullen every opportunity to put his case for compensation.
  5. In Association of British Civilian Internees Far East Region v Secretary of State for Defence,[21] internees of the Japanese in World War II sought compensation from the Secretary of State by way of an ex gratia payment. The Association/internees argued that the compensation scheme established by the Government, as a matter of policy, was insufficient and or unfair. The application for review of the Secretary’s decision was also challenged on the basis that the scheme was restricted to those who were British citizens.
  6. Scott Baker J held: “It is for the democratically elected government and not the courts to decide how public funds should be spent and how scarce resources should be allocated between competing claims.”[22] There is little in this last statement with which Australian courts would cavil.
  7. It will be readily seen from these UK cases that, notwithstanding the statutory capacity of Ministers and others to make ex gratia payments, the jurisprudence from that jurisdiction indicates that, as in Australia, there are significant elements both of discretion and exceptionality to attract payment of the kind sought in these proceedings. Put more simply and prosaically, act of grace payments, it would seem, are most uncommon in the UK, however much sympathy a particular cause or case might attract. While not bound by any of the comments and decisions of Courts in the UK, the available and limited jurisprudence on act of grace payments suggests that, as a matter of practice, the Minister’s course in the current matter accords with the approach of Ministers and others in the UK.

IV. Judicial Review: General Principles

  1. In the light of the discussion just ended, it is sufficient for current purposes to note three important and basic statements from a very wide array of similar propositions. First, in Attorney-General (NSW) v Quin[23] Brennan J said:

The point I wish to accent here is the straight-forward proposition that, rather than judicial review (strictly speaking), “curial interference with administrative decisions on the merits” is precisely what is being sought in these proceedings. In the absence of a specific legal basis for that interference the Minister’s decision in this case is, in my view, unimpeachable.

  1. Put another way, from what has been said it will be immediately clear that the High Court has consistently distinguished between reviewing matters of fact and matters of procedure in administrative decision-making.[26] It is also clear, which will be amplified below, that courts will not, as a general rule, interfere with administrative decision-making, which would otherwise have the effect of the Court simply substituting its decision for that of the appropriate person whom the legislature has authorised to make such decisions. That is not the Court’s role. Its role is to ensure that the appropriate `decision-maker’ has complied with the law and the relevant processes of `decision-making’ in arriving at the decision ultimately made.
  2. In this case, the Court has been asked to interfere with an administrative decision of the Minister for Finance and Deregulation, pursuant to his discretion exercised under s.33 of the Act. In the absence of a legal basis to do so, the Court may not be used as a vehicle to challenge it. Put another way, the Court has no legal warrant or basis to consider, even if it wished to do so, the merits of the Minister’s decision.
  3. The second important judicial pronouncement that highlights the distinction between the position in the UK and in Australia regarding “substantive unfairness” is Gummow J’s statement in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic,[27] which was cited with approval by Mason CJ in Attorney-General (NSW) v Quin.[28] In Kurtovic, after an exhaustive review of US and other authorities, Gummow J (then of course in the Federal Court) said (at p.221): “... the question of where the balance lies between competing public and private interests in the exercise of a statutory discretion goes to the merits of the case, and is thus one for the decision-maker, not the courts.”
  4. Thirdly, in Australian Broadcasting Tribunal v Bond, Mason CJ said:[29]

This statement was cited with approval by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf.[30] The three statements of the High Court in Quin and Bond (and their endorsement by subsequent High Court authority), and by Gummow J when in the Federal Court in Kurtovic, must be the basic judicial touchstones for these proceedings. Others of similar moment and import and detailed below.

V. The Applicant’s Grounds of Review: General Observations

  1. Without being utterly definitive for reasons that will become obvious soon enough, but especially because of their significant fluidity, in some respects Ms Clement’s submissions could hopefully if not ideally be categorised simply into two groups. The first relates to submissions that formally and discretely concern the merits of her various claims. This is by far the largest category. The second, very small group relates to submissions that might be said to concern questions or issues of law. However, because there is such an overlap and blending of issues, evidence, claims and general assertions, such simple compartmentalisation is both impractical and dangerous. Let me give a couple of examples.
  2. In one of Ms Clement’s more extreme submissions, she stated bluntly: “The Respondent’s outline of relevant facts in its submission is structured to deceive the Court.”[31] Such vehement, indeed remarkable, unsubstantiated claims of mala fides are (unfortunately) not uncommon in Ms Clement’s material and throughout the various documented proceedings.
  3. By way of further example, Ms Clement stated in her written submissions (also in par.4):
  4. As this paragraph shows (and numerous others like it) there is often simple assertion without supporting evidence, and or glaringly inappropriate claims of impropriety of one kind or another, also without supporting evidence of any kind.
  5. Ms Clement also consistently asserted in her written submissions, and in the course of the hearing, that because the Minister himself did not swear any affidavit in support of the relief he sought, and instead relied on affidavit material sworn by senior departmental officials who have been involved with Ms Clement’s application(s), he was thereby disentitled to any relief, specifically of the kind sought here in relation to the strike out application. Such a proposition, as I pointed out to her in the course of the trial, would (among other things) subvert any responsible functioning of government. Gibbs CJ stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “... material in the possession of the Department must clearly be treated as being in the possession of the Minister.”[32] As a practical matter, and much else besides, Ministers must rely, and be able to rely, on officials of their departments. Ms Clement’s assertion here has no substance.
  6. By way of further example, and as noted in Minister Tanner’s letter of 12th February 2008, Ms Clement consistently claims to have been victimised and harassed by personnel at ABS. She contends that ABS officers, and others in different organisations (e.g. Comcare), have blackmailed her, that her redundancy was forced or otherwise coerced, and that the submissions on behalf of the Respondent are misleading. These matters have been repeatedly canvassed over the years before various courts and tribunals, and all to no avail as far as the Applicant is concerned.
  7. Although the immediate application for relief by both parties is relatively straight-forward - for review of the Minister’s decision (Ms Clement), and its dismissal (the Minister) - because Ms Clement consistently seeks to have the merits of her claim(s) addressed, and did so in the hearing before me, as I have already indicated, the line of demarcation between each of the grounds of relief was not always as bright as one would have liked. To the degree that there are discernible, or remotely discrete, sections of her submissions, I will deal with them.
  8. At the outset of the hearing I indicated that the responsibilities of the Court in relation to the application were to deal with issues of law and that I could not, and would not, undertake a “merits review” of Ms Clement’s various grievances. Mr McCarthy agreed with that proposition. Unsurprisingly, Ms Clement did not. It is now well past the time to deal with the grounds upon which Ms Clement claims relief. In respect of each of them, to the degree necessary, I will also consider the submissions advanced by the Respondent.

VI. Specific Grounds of Review

  1. Two preliminary comments should be made. First, although already stated, for even more abundant caution it has to be observed at the outset, and as strongly as possible, that the overwhelming feature of the Applicant’s case is that this Court should re-visit the merits of her claim to be entitled to an act of grace payment. Her application, affidavits in support, and voluminous submissions, are needlessly, and often tendentiously, repetitious narratives of various factual matters, as seen by the Applicant, which give rise, in her view, to an entitlement to a payment under s.33 of the Act. Her prolix narratives expose the application to the fundamental flaw of asking the Court to review the merits of the Minister’s decision. As Mr McCarthy submitted (Written Submissions: par.24): “Even if the applicant were able to persuade the Court that the respondent’s conclusion should not be preferred on the material before him, that outcome would not entitle her to any remedy. A difference of opinion does not amount to legal error on the part of the respondent.”
  2. I agree. Such is the situation here. It matters not what view – one way or the other – this Court may have of the facts to which Ms Clement deposes and which she asserts give rise to her claim to an act of grace payment. This Court is solely concerned with the processes, and the legalities that attend them, of the Minister’s decision. The merits of it are not open to be reviewed by this Court unless there is an established legal basis for that to occur. No such basis has been established.
  3. Secondly, given the express terms of s.33 of the Act, it is predicated upon there being no other legal remedy available to redress the claims made by the Applicant, Ms Clement. Repeatedly in her submissions, oral and written, and in her affidavit material, she submits, invariably by assertion only, that various serious crimes have been committed by persons and agencies with whom she has been engaged. For example, she repeatedly claimed that having exposed areas of insecurity in data protection regarding trade figures at the ABS in the late 1980s and early 1990s she was victimised by management at ABS.[33] She went so far as to describe the ABS as a “major crime scene”, for a variety of reasons, which included breaches of the Census and Statistics Act and various conspiracies and fraudulent conduct to which Ms Clement adverts.[34]
  4. If there were such gross breaches of statutory duty, and various scenarios which have involved fraud, deceit and all manner of other offences outlined in Ms Clement’s material, it is patently clear that there are, or would be, other legal avenues of redress open to her by way of prosecution and otherwise. Accordingly, for this reason alone - on her own material - she could not sustain a claim for an act of grace payment, regardless of whatever view the Minister may form in relation to the exercise of the discretion under s.33 of the Act.
  5. To the extent that any of Ms Clement’s material refers to criminal conduct, it should be taken that my remarks about alternative avenues of redress in relation to her grievances apply, and unless otherwise warranted, no further comment will be made on her multiple allegations of criminality.[35]
  6. I should also formally note that the Minister acknowledged in his Statement of Reasons provided to Ms Clement under cover of a letter dated 4th April 2008 that there were some “weaknesses in the ABS’ security arrangements for its computer system.” He also acknowledged that while the Merit Protection and Review Agency had found that ABS could have handled Ms Clement’s complaints and grievances better, he also stated that “Ms Clement had not established her allegations that ABS, Comcare or other officers had acted in bad faith in relation to her.” Rather, he said, he considered it to be “quite feasible” that the actions of ABS officers had resulted from genuine concerns about her work performance which was “not of an adequate level.”[36]
  7. And it should be noted that even if there were incorrect findings of fact that, of itself, would not amount to an error of law. Brennan J said precisely this in Waterford v The Commonwealth.[37] This statement by his Honour was referred to approvingly in the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ in Enfield Council v Development Assessment Commission.[38]
  8. At the outset of these reasons I referred to the basic factual background of the litigation as arising out of Ms Clement’s employment at ABS. According to her version of events, she exposed a major security breach of certain sensitive data at ABS following which, she says, she was victimised over a period of time, and that she was ultimately coerced into taking a redundancy payment. She has pursued various claims against Comcare, to which I have referred. Notwithstanding the basic or relative simplicity of the original factual matrix out of which the current application under s.33 of the Act has emerged many years after the events, the intermingling of claims, assertions and allegations are tortuous, exasperatingly and needlessly complex. As Emmett J observed in his judgment in Clement v Comcare [2007] FCA 2039, at [34], in which he was dealing with very similar claims but in an obviously different context: “The material that I have briefly summarised above indicates that the author of the amended application has no real comprehension of the nature of judicial review that is authorised by the ADJR Act.” I respectfully agree with his comments; they apply similarly to the matters before this Court.[39]
  9. To the degree that I am able to do so, I will deal with each of the discrete bases upon which Ms Clement challenges the Minister’s exercise of his discretion that are discernible from the morass of interwoven materials. Mr McCarthy helpfully made submissions against a taxonomy that he had gleaned from Ms Clement’s materials on nine (9) bases. Each of these matters was dealt with summarily in the written submissions on behalf of the respondent.[40]

Ground 1: Wrong Basis for Victimisation Claim

  1. Ms Clement asserts that the Minister wrongly stated the factual basis for her [alleged] victimisation. Given (a) the comprehensive coverage of matters canvassed by the Minister in his letter of 12th February, (b) the exhaustive processes undertaken throughout the course of Ms Clement’s complaints, (c) the more than ample materials put before the Minister, and similarly put before the previous Minister (Mr Slipper), to enable him to consider the various allegations made by Ms Clement prior to exercising his discretion, and (d) that I have already noted Brennan J’s statement in Waterford v Commonwealth that a “finding ... on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law,”[41] which was endorsed by the High Court in Enfield Council v Development Assessment Commission,[42] even if there was an error of fact, in the absence of an error of law, there is no basis for review by this Court on this ground as asserted by Ms Clement.
  2. Mason CJ’s observation in Australian Broadcasting Tribunal v Bond warrants repeating. His Honour said: “To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government.”[43] To accede to Ms Clement’s application would be to pursue a path proscribed by the High Court.
  3. In addition to the above, the Court’s sole responsibility in matters such as these is to ensure that the Minister has exercised his discretion – that is, exercised the functions and responsibilities under the Act – lawfully. Such is the singular duty of this Court. As with all other grounds upon which Ms Clement seeks review, this is, to use adopt the words of Kirby J in Abebe v Commonwealth, a `thinly disguised attempt to procure judicial redeterminations of the facts or the merits.’[44]

Ground 2: Failure to Comply with s.33 of the Financial Management and Accountability Act

  1. Ms Clement next contends (paragraph 5 of the Application) that the Minister failed to comply with the terms of s.33 of this Act. She provides no evidence to substantiate this ground of complaint. Moreover, given the precise terms of the section, it is clear that the Minister has considered her application for an act of grace payment under the section and has considered that it is not appropriate to grant it. In doing so he has exercised his discretion as prescribed by the section. And, there being a decision not to grant a payment, s.33(2) has no application. Accordingly, there is no basis for review by this Court on this ground of complaint.

Ground 3: Omission to Take Account of “Serious Considerations”

  1. In paragraphs 6-11 of her affidavit filed on 5th May 2008, (and the same numbered paragraphs of her Application filed the same day), Ms Clement outlines various factual matters which, she says, were “serious” and were omitted by the Minister in his decision-making under the Act. In essence, the various contentions repeat her claims of mismanagement on the part of ABS in relation to the security of trade data, her attempts to encourage ABS management to rectify the alleged security breaches, and her victimisation by ABS as a result of disclosure of the security breaches. This submission may be put in more classical or traditional terms as `the Minister (so it is alleged) failed to take proper or due account of relevant considerations’ as set out in Ms Clement’s affidavit.
  2. The contentions of Ms Clement under this, and most other grounds, can be more accurately characterised in accordance with the observations of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu, where their honours said:[45]
  3. It is indisputable that Ms Clement believes the Minister’s exercise of his discretion in her case can and should be categorised as described in the previous paragraph from the High Court. However, their Honour’s conclusion also applies.[46]
  4. It is clear that the wider the discretionary power conferred, such as here under s.33 of the Act, the more difficult it will be for a Court to proscribe the range of permissible considerations.[47] And in Mason J’s judgment in Peko-Wallsend, his Honour detailed the parameters of `failure to take into account a relevant consideration.’ At the outset of Mason J’s discussion, he said: “The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.”[48]
  5. Mason J continued (at p.40): “Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.” It may also be the case, as has been suggested by learned authors (among others),[49] that the exercise of a broad discretion, conferred by the Parliament, by a Minister who has been elected by certain members of the populace according to due processes and who is, thereby politically accountable, may be less the subject of judicial review on the grounds of not taking account of relevant, or taking account of irrelevant, considerations than might otherwise be the case. However, having regard to the facts and procedures in this matter, I do not decide the matter in any way on this basis. Rather, in my view, there can be no question that the Minister has had regard to all relevant considerations, including the matters outlined by Ms Clement in the relevant paragraphs. This ground of review must be rejected.

Ground 4: Alternative Means of Redress

  1. In his Statement of Reasons, dated 4th April 2008, the Minister referred to Ms Clement’s complaints to the Privacy Commissioner, and the fact that that officer “did not take action on her complaints.” I need not repeat the various allegations of Ms Clement against ABS reported to the Commissioner. In large measure they mirror allegations made elsewhere, including in these proceedings, relating to “deceit”, “fraud” and “misleading conduct” on the part of ABS personnel.
  2. While not relying solely on this ground for rejecting Ms Clement’s application for an act of grace payment, the Minister concluded that “as Ms Clement had alternative means of redress, first to the Privacy Commissioner and then to seek judicial review of the Commissioner’s decisions, her allegations about breaches of her privacy did not amount to special circumstances which would attract the application of section 33(1) of the FMA Act.”[50]
  3. For reasons already articulated, in particular that the Minister’s conclusion related to matters of fact rather than matters of law, as well as it being part of the exercise of his broad discretion, in my view this ground of review is without merit. I will return to a consideration of what does and what does not constitute “special circumstances” later in these reasons.

Ground 5: Application of Wrong Legal Test

  1. In Azzopardi v Tasman UEB Industries Ltd, Glass JA distinguished between three discrete stages in the decision-making process. His Honour referred to: “... [a] determining the facts by way of primary findings and inferences, [b] directing himself as to the law and [c] applying the law to the facts found.”[51]
  2. The ground claimed by Ms Clement in this instance relates to the second stage of Glass JA’s process, but which could also flow to stage three. She maintains that the Minister “applied the wrong legal test” in making his decision. However, what Ms Clement does, in paragraphs 14 and 15 of her Application, is to elide a “wrong legal test” claim with factual conclusions arrived at by, for example, the Merit Protection and Review Agency. That agency concluded (wrongly, in her view) that she was not victimised and harassed by officer of ABS. She also contends that the Minister’s conclusion, that her [alleged] victimisation at ABS did not constitute “special circumstances,” was wrong.
  3. In neither of these paragraphs in her Application does Ms Clement state what the correct legal test is that should have been used by the Minister.
  4. The Act, as already set out earlier in these reasons, reposes a broad discretion in the Minister. There is a long and significant jurisprudence regarding the exercise of statutorily conferred “discretion.” For example, in Sharp v Wakefield Lord Halsbury LC said:[52]
  5. This statement was quoted approvingly by Kitto J in R v Anderson; ex parte Ipec-Air Pty Ltd and by Mason J in FAI Insurances Ltd v Winneke.[53]
  6. In Kruger v Commonwealth, Brennan CJ said: “[W]hen a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised....”[54] And in Padfield v Minister of Agriculture, Fisheries and Food, Lord Upjohn noted that in exercising his discretion, the Minister “... must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives.”[55] Earlier in the previous paragraph of his opinion, his Lordship noted that the question was whether the Minister’s clearly “bona fide and painstaking consideration [of] the complaints addressed to him” “was sufficient in law.” Between these two cases, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J said:[56]
  7. I have set out earlier the objects of, and the antecedents to, the Act that are central to these proceedings. In his Statement of Reasons, the Minister detailed the very long history of the matters involving Ms Clement, the matters he had before him when he made his decision, and the grounds upon which he did so. The materials before him included Finance Circular 2006/05, which outlines the procedures and general matters to which the Minister may have regard in the exercise of his discretion. The Minister confirmed that he had regard to this Circular but did not consider himself as being bound by it.[57]
  8. In my view, there is no basis for this ground of complaint. The Minister exercised his discretion, in my view, in accordance with the broad prescriptions of the Act and did so reasonably in accordance with judicial tenets of the highest, and long-standing, judicial authority.

Ground 6: Minister’s decision affected by “fraud, bad faith & bias”

  1. Ms Clement’s claims here are compendious. It will be sufficient to deal with the more grave allegations of fraud and bad faith rather than deal with each of the three related claims separately. It should also be noted that a claim of “bias” is more usually, and properly, an aspect of natural justice or procedural fairness. Ms Clement raises breach of natural justice in her affidavit filed on 5th May. I will deal with that ground of review next. Here I confine my remarks more directly to the allegations of `fraud and bad faith.’
  2. To state the obvious, allegations of this kind are serious in the extreme. The burden of proof is heavy. In SBAP v Refugee Review Tribunal, Heerey J said:
  3. More summarily, French J has said that a power was not exercised in good faith if it was exercised capriciously or recklessly.[59] After reviewing many authorities in NAKF v Minister for Immigration and Multicultural and Indigenous Affairs,[60] Gyles J concluded (at [24]: internal citations omitted):
  4. From the voluminous material presented to this Court, and from the detailed history of the matters involving Ms Clement, it would be, in my view, impossible to conclude that either Mr Slipper or the current Minister, Mr Tanner, `was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him – tossing a coin without reading the file.’ Clearly no such breach of duty has occurred. There is no evidence of caprice or recklessness in the exercise of the Minister’s discretion. Ms Clement’s allegations proceed by way of assertion only. She has not discharged the heavy onus on her to make good her allegations. I agree with Mr McCarthy’s submission that her allegations against the Minister, the Department and various government agencies, are scandalous and should be struck out.

Ground 7: Breach of Natural Justice

  1. In her affidavit filed on 5th May 2008, Ms Clement advances further grounds for review of the Minister’s decision, the first of which (paragraphs 16 & 20 – 50) is that the Minister denied her natural justice. This occurred, she says (par.21), because the Minister “relied on the deceitful and dishonest Ministerial Brief dated 11 February 2008, from the Department of Finance and Administration.” In paragraph 27, she contended that the Minister relied on “deceitful and fraudulent briefings.” In paragraph 31 (which runs over 17 separate “dot points” and 5½ pages) she described what she maintains were the “circumstances of the blackmailing of me by ABS and Comcare.” The remaining paragraphs (32-50) rehearse the facts alleged by Ms Clement that give rise to her complaints against Comcare but which were formally dealt with by Emmett J in Clement v Comcare to which I have referred earlier in this judgment.
  2. It is extremely difficult to conceive how any claim arising out of a breach of natural justice could arise on the material before the Court. At every step along the long-winding path that has led to the door of this Court Ms Clement has been afforded every opportunity to comment on and respond to every document produced and every process undertaken in the matters that ultimately have given rise to these proceedings. A few examples will suffice. They are confined to more recent events.
  3. In September 2003, when the Applicant was legally represented by a prominent Canberra legal practitioner (Mr Bernard Collaery), Mr Collaery met with a number of Senators, officers from ABS, the Australian Government Solicitor and the Department of Finance, to consider Ms Clement’s grievances. At that meeting, the Minister agreed that there should be an independent inquiry into Ms Clement’s case. This inquiry – previously referred to – was conducted by Mr Grills. A copy of the Minutes of that meeting was before the Court (tab 34 to Annexure GSV 38 to Dr Verney’s first affidavit affirmed on 27th June 2008).
  4. In June 2004, Mr Collaery was provided with two copies of the Grills’ Report together with advice confirming that the recommendation to the Minister was to the effect that the decision to decline an act of grace payment should be confirmed.
  5. In September 2004, Ms Clement’s husband, Mr Howard-Smith (who described himself in the correspondence as “barrister”), provided to Dr Stone, the Parliamentary Secretary to the Minister for Finance, a detailed commentary on the “Grills’ Report” being the independent assessment commissioned by Mr Slipper MP to inquire into whether an act of grace payment should be made to Ms Clement. In addition to the seven (7) page letter from Mr Howard-Smith and a number of annexures, he also provided Dr Stone with a “commentary” on the Grills’ Report that runs to 124 pages.
  6. In November 2005, Ms Clement provided Dr Stone with further material in support of her on-going grievances. Those materials might more properly be described as a brief which runs for approximately 162 pages. They are located behind tab 3 (in volume 2) of annexure GSV 38 of Dr Verney’s affidavit.
  7. On 18th July 2007, solicitors acting for the new Parliamentary Secretary to the Minister, Senator Colbeck, provided Ms Clement with a draft factual background document, which related to her request for a reconsideration of an act of grace payment. She was invited to comment on it. The letter of invitation from Senator Colbeck is annexure GSV 35 to Dr Verney’s primary affidavit.
  8. By letter dated 18th December 2007, Ms Clement provided comments on the draft of the “factual document” referred to in the previous paragraph. That letter is located behind tab 5 of GSV 38 (Volume 3).
  9. On 11th February 2008 Dr Verney signed a Ministerial Brief, which was provided to Mr Tanner for the purpose of assisting him to make a decision in relation to Ms Clement’s Application. That Brief comprised the materials that were before the Court in Volumes 2 and 3, which constitute annexure GSV 38 to Dr Verney’s primary affidavit. Each of the materials referred to in the previous six paragraphs – thereby including the detailed comments by Ms Clement and Mr Howard-Smith, as well as other material from Ms Clement – was placed before the Minister before he considered Ms Clement’s application for an act of grace payment.
  10. In my view, it cannot seriously be contended that Ms Clement (or Mr Howard-Smith for that matter, on her behalf) has not been afforded every opportunity to comment on all relevant materials placed before both Ministers (Mr Slipper and Mr Tanner) prior to the exercise of the discretion that rested with Mr Slipper, and which currently (and solely) resides with Mr Tanner under s.33 of the Act. The claim that Ms Clement has been denied natural justice must fail.

Ground 8: Breaches of the Criminal Code

  1. In paragraph 51 of her affidavit filed on 5th May 2008, Ms Clement makes broad accusations that “procedures that were required by law to be observed ... were not observed.” As a result, she contends, there were breaches of the Commonwealth Criminal Code. The breaches are unspecified. So too are the procedures that, she says, should have been followed. In the absence of any proof of any relevant breaches of the Criminal Code, which would otherwise and in any event provide for alternative means of redress (such as prosecution), there is no substance to these most general allegations. This ground of review must be rejected.

Ground 9: Ministerial Discretion Contrary to s.5 ADJR Act

  1. In paragraphs 52-77 of her affidavit filed on 5th May 2008, Ms Clement rehearses, in a most sweeping way, various grounds which, she contends, establish grounds for review under s.5 of the ADJR Act. Without being exhaustive, they range from the curious claim that the Minister responsible for making the decision did not have jurisdiction to do so (par 52), to the Minister not being authorised to take the decision he did because he was party to certain criminal activity that otherwise was in breach of various specified sections of the Crimes Act (Cth),[62] to taking into account irrelevant considerations (par.65), failing to take into account relevant considerations (par.67), to the Minister’s decision being “induced by fraud” (par.60), to the Minister coming to a decision that no reasonable person could have reached (par.76).
  2. In my view, all of Ms Clement’s assertions, claims and allegations generally in these paragraphs come almost directly within what Kirby J contemplated in Abebe v Commonwealth (which I have previously noted) where his Honour referred to “... some applications for judicial review ... were thinly disguised attempts to procure judicial redeterminations of the facts or the merits.”[63]
  3. The difference here, however, is that Ms Clement’s attempt to have her grievances “redetermined” are not “thinly disguised.” They are strong, forceful and blunt attempts to do so. One is left in no doubt as to where she, and Mr Howard-Smith, stands in relation to each step in the long and unfortunate history of the matters now before the Court - again.
  4. There is no substance to her claims in these paragraphs of her affidavit. As I have already noted, they simply rehash claims and assertions, without evidence, that have been made many times over already in the materials and submissions in this Court, and before other Courts and tribunals. It is not for this Court to interfere with the Minister’s decision where, as here, there is no evidence of an error of law. Also in accordance with authority, nor is it for this Court simply to substitute its assessment of the facts and merits of the case for the decision which the Parliament of this country has determined should be exercised by the Minister for Finance.

VII. Summary Disposal Application: General Principles

  1. I noted at the outset of these reasons that the Respondent sought to have Ms Clement’s Application dismissed on one or all of three grounds. The statutory basis upon which the Court exercises such a course is located in s.17A of the Federal Magistrates Act. That section states:
  2. That section mirrors s.31A of the Federal Court of Australia Act 1976. Section 31A has recently been considered by the Full Court of the Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd.[64] Because of the detailed discussion in that case, it is sufficient simply to refer to the expansive reasons respectively of Rares J and Gordon J.[65] I respectfully adopt what their Honours said in that case.[66]
  3. In White Industries Australia Ltd v Federal Commissioner of Taxation,[67] Lindgren J comprehensively considered the import and effect of s.31A of the Federal Court of Australia Act and s.17A of the Federal Magistrates Act. Beginning at [55], his Honour noted the following from the Attorney-General’s Second Reading speech in relation to the introduction of those sections. As quoted by his Honour, the Attorney said: “[the new provisions would strengthen] the powers of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases.”
  4. Lindgren J next recounted, at [58], a recent litany of cases in this Court and in the Federal Court, which considered the operation and application of the statutory summary disposal provisions. Finally (for current purposes), in relation to `the meaning and effect’ of s.31A in the light of its United Kingdom equivalent, his Honour observed that “the expressions “no real prospect of succeeding” and “no real prospect of successfully defending” require attention to be given to real, as opposed to “fanciful” or “merely arguable” prospects.”[68] Respectfully, I accept and adopt his Honour’s reasoning.
  5. It is against the background of s.17A and the principles articulated in recent decisions of the Federal Court noted that the following discussion should be considered.
  6. I agree generally with Ms Clement’s submission in relation to summary dismissal, which repeatedly quotes Kirby J’s observations in Thorpe v Commonwealth (No 3).[69] In that case, his Honour said:
  7. The doubt to which his Honour referred has no application in this case. I have repeatedly noted the numerous occasions and courses pursued by Ms Clement to remedy the various injustices she alleges have been visited upon her. In my view, nothing would be gained here were I minded to give her any benefit of the doubt about her entitlement, as a matter of law, and equally so to allow her to re-plead her various claims. The history of her pursuit is such that no such indulgence is warranted, nor could it be justified.
  8. As already noted, recent Federal Court authority (White Industries and Jefferson) in relation to summary disposal applications[71] confirm that the appropriate, indeed the “just,” course is to ensure that the processes of the Court are not abused. The Court does not need to make more than an assessment that the proceedings have no reasonable prospect of success as understood by Lindgren J in White Industries. Matters of costs generally and court resources are not extraneous to these considerations. In my view, Ms Clement’s Application has no reasonable prospect of success. To allow it to proceed would constitute an abuse of process. It would also certainly waste significant, and scarce, court resources.

VIII. Conclusion

  1. It is true that, as a matter of law and precedent, English jurisprudence allows review for `fundamental error of fact.’[72] This line of cases began perhaps with Lord Wilberforce’s judgment in Secretary of State for Education and Science v Tameside Metropolitan Borough Council, where his Lordship said that officials exercising discretionary powers committed jurisdictional error if they acted “upon an incorrect basis of fact.”[73]
  2. Learned commentators in Australia contend that the High Court judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 “gave its blessing to review for irrationality or illogicality, a ground which has been in the developmental stages for some considerable time.”[74] In my view, however, none of these grounds or principles, either from the UK or as summarised by the commentators on recent High Court jurisprudence, assists Ms Clement.
  3. By way of conclusion, three observations should be made. First, although in dissent in the case (one involving allegations of bias), Kirby J’s observations in Minister for Immigration and Multicultural Affairs v Jia are apposite here. His Honour said:
  4. Many of the matters to which his Honour referred were either stated directly, or implied, as grounds for complaint against the Minister in these proceedings. They are extremely grave allegations. To a significant degree, they permeate all of Ms Clement’s contentions in one shape or another. I have found no evidence upon which any such grounds could be sustained. The application for review cannot succeed on any such basis.
  5. Secondly, it is important for the sake of completeness as well as anything else to consider whether any of the matters raised by Ms Clement, either on their own or together, constitute “exceptional circumstances” for the purposes of s.33 of the Act. A helpful consideration of the jurisprudence, such as it is, in relation to “special circumstances” was outlined by Weinberg J in Toomer v Slipper,[76] which also was an `act of grace’ case. Respectfully I adopt what his Honour said there, in particular his Honour’s reference to the broad discretion that reposes in the Minister under s.33 of the Act and that it is impossible to state, in advance, what might constitute “special circumstances.” It might ultimately be the case that the prescription might best be served by stating what does not constitute “special circumstances” rather than by trying to define what does. Weinberg J relied on older authority, which noted that “the word “special” derives almost all of its meaning from its context.” Such is the case here.
  6. In my view, notwithstanding the patent fervour with which Ms Clement views the facts and circumstances that give rise to her claim for an act of grace payment, to embrace the words of Weinberg J, “there is nothing in the formulation of “special circumstances” adopted by the respondent [Minister] which strikes me as being too narrow, or otherwise erroneous in law.”[77] In my view, Ms Clement has not made out that any “special circumstances” for the purposes of s.33 of the Act exist. Mere persistence, doggedness and fervent belief in the justice and pursuit of a claim does not, without a reference point of legal principle, amount to “special circumstances.”
  7. Thirdly, the Commonwealth Parliament has determined that its authority, on behalf of Australian taxpayers, for the purposes of the Act generally and in relation to `act of grace’ payments in particular, reside with the Minister for Finance. The Court cannot, as a matter of course, substitute its judgment for that of the Minister, in relation to such a detailed range of facts and circumstances. In this regard, I readily and respectfully accept the sage observation of Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Wang where their Honours referred to “the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle.”[78]
  8. As the High Court has observed on numerous occasions, such as in Peko-Wallsend and in Quin, both of which have been cited repeatedly in this judgment, a court should be very cautious to interpose itself into such matters where, as here, the discretion is very broad and where there is no evidence even to suggest that, as a matter of law, that discretion has been improperly or unreasonably exercised, or otherwise where there has clearly been no error of law. As Brennan J said in Annetts v McCann:
  9. Such is the present case. Section 33 of the Act confers a wide discretion on the Minister. In this case, he has exercised it in a way that conforms to the prescriptions of the law. In the absence of an error of law or other limited category or ground recognised by and in accordance with authority that would warrant judicial intervention, it is not for this Court to consider the merits of the Minister’s decision.
  10. For the above reasons, in my view the application of Ms Clement is misconceived. In my view, it has no reasonable prospect of succeeding. It is, in my view, bound to fail. The serious allegations against the Minister (and for that matter, against various officials and departmental officers) are unsubstantiated and should be rejected outright. In that respect alone, the proceedings are vexatious. In my view, they are an abuse of the processes of the Court. Ms Clement’s Application should be dismissed with costs.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Neville FM


Associate: R. Davidson


Date: 30 January 2009

[1] Further history of related matters is set out in a series of judgments in the Federal Court, firstly from Emmett J, and then from Stone J. See Clement v Comcare [2007] FCA 2039 (Emmett J), Clement v Comcare [2008] FCA 1779 & [2008] FCA 1780 (both judgments of Stone J). Ms Clement also pursued proceedings in the Australian Industrial Relations Commission in 1996. To the degree necessary, I respectfully accept and adopt the reasoning of Emmett J in Clement v Comcare. There is significant overlap between the current proceedings and the submissions advanced by the Applicant in the proceedings before his Honour. Emmett J said, at [45]: “The present form of the proposed amended application is virtually incomprehensible. It has clearly enough been put together by a cut and paste method without any attempt at careful checking and proofreading.” See also his remarks at [54]. Respectfully, his Honour’s comments are apposite to the current proceedings in this Court.
[2] As indicated in [2] of these reasons, a fulsome account of the antecedents of the current proceedings is provided, and documented, in Dr Verney’s first affidavit, affirmed on 27th June 2008.
[3] A copy of the Ministerial Brief was provided to the Court, and obviously to Ms Clement, in folder 2 of the materials, which comprised annexure GSV 38 to Dr Verney’s affidavit, previously referred to.
[4] See s.13 of the ADJR Act.
[5] See Respondent’s Outline of Submissions, 22nd August 2008, par.16. That paragraph stated: “The respondent accepts that his decision to decline to authorise an act of grace payment to the Applicant is reviewable under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act). However, s.5 involves supervisory grounds upon which a decision can be reviewed for error of law: it does not involve review on the merits.”
[6] The Parliament of the Commonwealth of Australia, House of Representatives, Financial Management and Accountability Bill 1966, Explanatory Memorandum, 1996, par.2. The Act itself summarises its provenance thus: “An Act to provide for the proper use and management of public money, public property and other Commonwealth resources, and for related purposes.”
[7] Ibid., par.3. The statement by the Minister, and the clear terms of s.33, would seem to satisfy the requirements prescribed by the High Court in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at p.171, where Brennan CJ, Gaudron & Gummow JJ said: “The courts do not readily classify as absolute or unfettered a statutory discretion, the exercise of which will affect the rights of the citizen, and, if the legislature intends that result, `it should do so by a very plain expression of its intent’....” Similar remarks were made by Mason J in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at p.368. See also the observations of Kirby J in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, at [69] – [70]: “All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone.” And see Brennan CJ in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at p.36: “[W]hen a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised....”
[8] Such matters are explained in detail in the Explanatory Memorandum, previously referred to, at par.31, and in Finance Circular 2006/05 (at pp.7, 28-37 & Attachment D), which is annexed to Dr Verney’s affidavit of 14th August 2008. For example, par.21 of this Circular states: “The conditions under which act of grace claims are approved can broadly be characterised as where the Minister or delegate considers the Australian Government has a moral obligation, as opposed to a legal obligation, to provide redress....” Par.22 of the same document states: “The act of grace power is used generally as a last resort, where there is no other remedy that could be used to effectively compensate a person for a loss he or she has suffered (or would suffer were an act of grace payment not approved).”
[9] There is, of course, a large body of work – jurisprudential and philosophical – that explores the link between morals or ethics and law. This is especially so, for example, in the area of criminal law. Indeed, Lord Coleridge CJ clearly stated: “It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.” R v Instan [1893] 1 QB 450 at p.453. Other traditions also explore the important cross-fertilisation of law and ethics, such as natural law. See, for example, the collection of essays in R. George (ed.), Natural Law Theory: Contemporary Essays, (Oxford: Clarendon Press, 1992 [reprint 1994]. More generally, see the essays collected in P. Coss (ed.), The Moral World of Law, (Cambridge: Cambridge University Press, 2000 [reprint 2007]).
[10] Aristotle, Nicomachean Ethics, Bk. V.1.1129a15-25.
[11] T. Williams, Who is my neighbour? Personalism and the Foundations of Human Rights, (Washington DC: The Catholic University of America Press, 2005) p.262 (Emphasis in original text.) Among a vast amount of literature in which similar comments are to be found about “moral obligation”, see for example, J.Annas, The Morality of Happiness, (New York: Oxford University Press, 1993); J. Casey, Pagan Virtue: An Essay in Ethics, (Oxford: Clarendon Press, 1990); S. Fleischacker, A Short History of Distributive Justice, (Cambridge, MA: Harvard University Press, 2004); F. D. Miller Jr., Nature, Justice, and Rights in Aristotle’s Politics, (Oxford: Clarendon Press, 1995 [reprint 2004]); M. Nussbaum, The fragility of goodness: Luck and ethics in Greek tragedy and philosophy, (Cambridge: Cambridge University Press, 1986); J. Rist, Real Ethics: Rethinking the Foundations of Morality, (Cambridge: Cambridge University Press, 2002).
[12] De Officiis, I.7.20.
[13] See for example Lewis and Short, A Latin Dictionary, (Oxford: Clarendon Press, 1879 [reprint 1987]) pp.825-826.
[14] See the cases cited in footnote no.7, above, and other cases cited later in this judgment.
[15] [1984] UKHL 5; [1985] AC 835. See especially the comments of Lord Templeman at pp.866-867.
[16] [2001] QB 213.
[17] The history of the UK’s acceptance of this principle of “substantive unfairness,” and Australia’s rejection of it, is well recorded in standard texts, such as M. Aronson, B. Dyer, M. Groves, Judicial Review of Administrative Action (Third Edition) (Sydney: Lawbook Co., 2004) Chapter 6.13 “England’s transition from estoppel to substantive review” and Chapter 6.14 “Australia’s position on estoppels, promises and substantive protection.” In particular, see the High Court’s somewhat strong “discussion” of Coughlan in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at pp.21-25 [65] – [77] (per McHugh & Gummow JJ).
[18] See, for example, P. Cane, L. McDonald, Principles of Administrative Law: Legal Regulation of Governance, (Melbourne: Oxford University Press, 2008) pp.141 & 158; C. Stewart, “The doctrine of substantive unfairness and the review of substantive legitimate expectations,” in Australian Administrative Law: Fundamentals, Principles and Doctrines, (eds. M. Groves, H.P. Lee) (Cambridge: Cambridge University Press, 2007) pp.280-298.
[19] (2000) 2 All ER 917.
[20] (2002) 3 All ER 293.
[21] [2002] EWHC 2119 (Admin).
[22] Ibid. at [38]. It should be noted that his Honour expressed (at [55]) “great sympathy” for the internees and their plight, but such was insufficient to warrant, as a matter of principle, an ex gratia payment.
[23] (1990) 170 CLR 1 at pp.35-36. In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, at [43] & [44], Gleeson CJ, Gummow, Kirby & Hayne JJ referred to Brennan J’s exposition of “this field of discourse” as “fundamental.” The same passage of Brennan J in Quin was cited again by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73] per McHugh, Gummow & Hayne JJ.
[24] (1803) 5 US 87 at p.111.
[25] See also Mason CJ’s observations in the same case where he said, at p.23, (admittedly speaking about `legitimate expectations’): “... the view that legitimate expectations may attract substantive, as distinct from procedural, protection encounters the objection that it will entail curial interference with administrative decisions on the merits by precluding the decision-maker from ultimately making the decision which he or she considers most appropriate in the circumstances.”
[26] Aronson, Dyer & Groves, Judicial Review of Administrative Action, op. cit., p.251, aver that the distinction is between reviewing process and reviewing outcomes, the former only being judicially reviewable.
[27] (1990) 21 FCR 193.
[28] (1990) 170 CLR 1 at p.18.
[29] [1990] HCA 33; (1990) 170 CLR 321 at p.341.
[30] (2001) 206 CLR 323 at p.344 [63].
[31] Ms Clement’s [Written] Submissions: 29th August 2008, par.4.
[32] (1985) 162 CLR at p.31.
[33] In paragraph 3 (vii) of her affidavit filed on 25th July 2008, Ms Clement refers to the ABS as duplicitous, that its opinions were those of “a known nest of treasonous criminals, who... successfully sabotaged the Australian economy.” In the same place she refers to ABS, Comcare and the Department of Finance as being engaged in a conspiracy to defraud her of just compensation. In paragraph 4 of the same affidavit Ms Clement asserts that Dr Verney has provided fraudulent advice to the Minister. On the basis of these grave assertions, and others like them, Ms Clement maintains that they, of themselves, constitute “special circumstances” for the purposes of the Act, and thereby justify the Minister making an act of grace payment.
[34] Among many places, see Transcript (4th September 2008) pp.7-10. See also par.17 of the Application headed “Particulars of fraud, bad faith and bias....” In that same paragraph Ms Clement submitted that her acceptance of a redundancy payment was the result of her being blackmailed by ABS and Comcare.
[35] In her affidavit in support of the Application, filed 5th May 2008, Ms Clement stated baldly, at par.4: “...because I was the witness to the fact that ABS management would not secure the data, a criminal offence under Section 19 of the Census and Statistics Act and Sections 5, 86 and 24 of the Commonwealth Crimes Act.” S.5 of the Crimes Act 1914 (Cth) provided for an offence of “aiding and abetting.” It was repealed by Act No. 24 of 2001. S.24 of the same Act provided for the offence of “treason.” It was repealed by Act No.65 of 2002. S.86 dealt with an offence of “conspiracy.” It was repealed by Act No.24 of 2001.
[36] The Statement of Reasons provided to the Applicant under s.13 of the ADJR Act is Annexure “GSV 44” to Dr Verney’s affidavit of 27th June 2008.
[37] [1987] HCA 25; (1987) 163 CLR 54 at p.77.
[38] [2000] HCA 5; (2000) 199 CLR 135 at [44].
[39] The lack of clarity of Ms Clement’s material is made worse by the fact that her Application contains either or both (a) submissions and (b) repeats much of what is contained in her affidavits and written submissions. To say the least, her materials are, unfortunately and wearisomely, repetitious and convoluted.
[40] In his oral submissions, Counsel confined his remarks to six (6) discrete areas.
[41] (1987) 163 CLR at [14] of Brennan J’s judgment.
[42] [2000] HCA 5; (2000) 199 CLR 135 at [44].
[43] [1990] HCA 33; (1990) 170 CLR 321 at p.341.
[44] [1999] HCA 14; (1999) 197 CLR 510 at p.587.
[45] (1999) 197 CLR 611 at p.626 [40].
[46] In the following paragraph, 197 CLR at pp.626-627 [41], Gleeson CJ and McHugh J cite the following statement by Lord Brightman: “Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.” Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 at p.518.
[47] See, for example, Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1.
[48] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR at p.39 and more generally at pp.39-42. The emphasis in the text belongs to Mason J.
[49] See P. Cane & L. McDonald, Principles of Administrative Law: Legal Regulation of Governance, (Melbourne: Oxford University Press, 2008), p.151 and Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537 at pp.560-61 (Sheppard J).
[50] For the Privacy Commissioner’s original correspondence confirming his intention to institute an investigation into matters raised by Ms Clement, see his letter, dated 28th August 1992, addressed to Mr Ian Castles, Australian Statistician, Australian Bureau of Statistics, which is behind tab no.45, being part of annexure GSV 38. It begins at p.1012 of the paginated documents.
[51] (1985) 4 NSWLR 139 at p.156.
[52] [1891] AC 173 at p.179.
[53] [1965] HCA 27; (1965) 113 CLR 177 at p.189 and [1982] HCA 26; (1982) 151 CLR 342 at p.368 respectively.
[54] [1997] HCA 27; (1997) 190 CLR 1 at p.36. See also the joint judgment of McHugh & Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [54].
[55] [1968] UKHL 1; [1968] AC 997 at p.1060. In the same case, Lord Reid said (at p.1030) that the discretion must conform to the “policy and objects of the Act.” His Lordship continued: “... the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.”
[56] [1986] HCA 40; (1986) 162 CLR 24 at pp.40-41.
[57] A copy of Finance Circular 2006/05 is annexed to Dr Verney’s supplementary affidavit, filed 15th August 2008. Attachments B and D to that Circular deal in detail with `act of grace payments.’
[58] [2002] FCA 590 at [49].
[59] Applicant WAFV/2002 v Refugee Review Tribunal [2003] FCA 16 at [52].
[60] (2003) 199 ALR 412.
[61] The Full Court of the Federal Court has held that “bad faith ... implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision-maker.” SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19].
[62] The sections of the Crimes Act claimed to have been breached include some that have been repealed (to which I have previously referred), as well as “treachery” (s.24AA) and “sabotage” (s.24AB).
[63] [1999] HCA 14; (1999) 197 CLR 510 at p.587 (internal citations omitted).
[64] (2008) 246 ALR 465.
[65] Ibid: see Rares J at [45] & [73] – [74] and Gordon J at [124] – [132].
[66] Nothing that was said by a differently constituted Full Court (French, Tamberlin & Mansfield JJ) on s.31A in Dent v Australian Electoral Commissioner [2008] FCAFC 111; (2008) 249 ALR 523 at [28], in my view, affects the significance of the remarks of Rares and Gordon JJ.
[67] (2007) 160 FCR 298.
[68] Lindgren J also cited – which I need not – Queensland and New South Wales Courts of Appeal decisions, which follow the same reasoning. See [2007] FCA 511; (2007) 160 FCR 298 at [59].
[69] [1997] HCA 21; (1997) 144 ALR 677. These comments should be considered also in the light of his Honour’s observations in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [114] and [170].
[70] [1997] HCA 21; (1997) 144 ALR 677 at p.686.
[71] The terminology is taken from Division 13.3 of the Federal Magistrates Court Rules 2001. See in particular Rule 13.07 (Disposal by summary judgment) and Rule 13.10 (Disposal by summary dismissal).
[72] R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330.
[73] [1976] UKHL 6; [1977] AC 1014 at p.1047. Lord Wilberforce’s judgment in this case was also cited by Kirby J in Applicant S20/2002 198 ALR at [162].
[74] See M. Aronson, B. Dyer, M. Groves, Judicial Review of Administrative Action (Third Edition) (Sydney: Lawbook Company, 2004) p.247, where they cite [2003] HCA 30; (2003) 198 ALR 59, where Kirby J referred, at [161], to a review in circumstances of `extreme administrative injustice.’ I do not consider Ms Clement’s application to constitute or to warrant such a description.
[75] (2001) 205 CLR 507 at 550. Cf. the comments by Gaudron, Gummow and Hayne JJ in Hot Holdings v Creasy [2002] HCA 15; (2002) 210 CLR 438 at p.455 in relation to the import of `government policy’ in ministerial decision-making.
[76] [2001] FCA 981, especially at [28] – [32].
[77] Ibid at [32].
[78] (2003) 215 CLR 518 at [74].
[79] (1990) 170 CLR596 at p.604. See also the joint judgment of Mason CJ, Deane & McHugh JJ at p.598

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